dismissed O-1B Case: Horse Training

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 24, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, engaged in thoroughbred horse sales and training, seeks to classify the Beneficiary as 
a foreign national of extraordinary ability in the arts to work as an assistant trainer/rider. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(0)(i), 8 U.S.C. § 1101(a)(15)(0)(i). 
This 0-1 classification makes nonimmigrant visas available to foreign nationals who can 
demonstrate their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in the field through extensive documentation. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that the training and riding of racehorses falls within the arts and that the 
evidence did not satisfy at least three of the regulatory requirements. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary meets at least 
three of the regulatory criteria in the arts. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 101(a)(15)(0)(i) of the Act provides classification to a qualified beneficiary who has 
extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated 
by sustained national or international acclaim, whose achievements have been recognized in the field 
through extensive documentation, and who seeks to enter the United States to continue work in the area 
of extraordinary ability. The regulation at 8 C.F.R. § 214.2( o )(3)(ii) states, in pertinent part: 
Extraordinary ability in the .field of arts means distinction. Distinction means a high 
level of achievement in the field of arts evidenced by a degree of skill and recognition 
substantially above that ordinarily encountered to the extent that a person described as 
prominent is renowned, leading, or well-known in the field of arts. 
Matter of B-S-, LLC 
Arts are defined as "any field of creative activity or endeavor such as, but not limited to, 
fine arts, visual arts, culinary arts, and performing arts. 
The regulation at 8 C.P.R. § 214.2(o)(3)(iv) sets forth a multi-part analysis for assessing a 
beneficiary's extraordinary ability. First, a petitioner can demonstrate the beneficiary's recognition 
in the field through documentation that the beneficiary has been nominated for, or is the recipient of, 
significant national or international awards or prizes in the particular field such as an Academy Award, 
an Emmy, a Grammy, or a Director's Guild Award. 8 C.P.R. § 214.2(o)(3)(iv)(A). If a petitioner 
does not provide this information, then that petitioner must satisfy at least three of the six categories 
of evidence listed at 8 C.P.R. § 214.2(o)(3)(iv)(B)(l)-(6). If a petitioner shows that certain criteria in 
paragraph (o)(3)(iv)(B) of this section do not readily apply to the beneficiary's occupation, that 
petitioner may submit comparable evidence in order to establish the beneficiary's eligibility. 8 C.P.R. 
§ 214.2(o)(3)(iv)(C). 
The submission of documents relating to at least three criteria does not, in and of itself, establish 
eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994). We have held 
that, "truth is to be determined not by the quantity of evidence alone but by its quality." Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Pursuant to the preponderance of the evidence 
standard, we "must examine each piece of evidence for relevance, probative value, and credibility, 
both individually and within the context of the totality of the evidence, to determine whether the fact 
to be proven is probably true." !d. Accordingly, where a petitioner presents qualifying evidence 
under at least three criteria, we will determine whether the totality of the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. 
In addition, the regulation at 8 C.P.R.§ 214.2(o)(2)(ii) requires a written advisory opinion(s) from the 
appropriate consulting entity or entities. The general requirements for the advisory opinion are as 
follows: 
Content. Consultation with a peer group in the area of the alien's ability (which may 
include a labor organization), or a person or persons with expertise in the area of the 
alien's ability, is required in an 0-1 petition for an alien of extraordinary ability. If 
the advisory opinion is not favorable to the petitioner, the advisory opinion must set 
forth a specific statement of facts which supports the conclusion reached in the 
opinion. If the advisory opinion is favorable to the petitioner, it should describe the 
alien's ability and achievements in the field of endeavor, describe the nature of the 
duties to be performed, and state whether the position requires the services of an alien 
of extraordinary ability. A consulting organization may also submit a letter of no 
objection in lieu of the above if it has no objection to the approval of the petition. 
8 C.P.R. § 214.2(o)(2)(ii)(B) allows for a waiver of the consultation in the arts if the beneficiary 
seeks readmission to the United States to perform similar services within two years of a previous 
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Matter of B-S-, LLC 
consultation. If petitioners wish to rely on a prior consultation, they must submit a copy with the 
petition and so advise the Director. 
II. ANALYSIS 
A. Prior 0-1 Nonimmigrant Visa 
The record indicates that U.S. Citizenship and Immigration Services (USCIS) has previously 
approved a petition for 0-1 status that a different employer filed on behalf of the Beneficiary. The 
prior approvals do not preclude users from denying an extension of the original visa based on a 
reassessment of the qualifications of a petitioner or beneficiary. Texas A&M Univ. v. Upchurch, 
99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Each nonimmigrant petition filing is a 
separate proceeding with a separate record and a separate burden of proof. In making a 
determination of statutory eligibility, users is limited to the information contained in that 
individual record ofproceedings. See 8 C.F.R. § 103.2(b)(16)(ii). 
In the present matter, the Director reviewed the record and concluded that the Petitioner did not 
satisfy all eligibility requirements for the requested classification. As discussed further below, based 
on the lack of required evidence, we find that the Director correctly denied the instant petition. 
B. Classification in the Arts 
The Petitioner seeks to classify the Beneficiary as an individual of extraordinary ability in the arts. 
Although the Director correctly found that "arts" is not the appropriate category for the proposed 
work or the Beneficiary's talents, the Petitioner does not address this finding on appeal. While the 
regulation at 8 C.F.R. § 214.2(o)(3)(ii) lists animal trainers as falling within the arts, this example is 
specifically in the context of discussing essential personnel working in support of an 0-lB principal. 
Such positions in the arts might include trainers for animal acts for stage, film, and television 
productions, as well as for circuses, depending on the facts presented. Training for animals engaged 
exclusively in athletic endeavors, however, such as competitive horse racing, would not be among 
this group. 
The nature of the intended events or activities in the United States is critical in determining whether 
the Beneficiary is entering the United States to provide services in the arts. In this case, the 
Petitioner specified on the 0 and P Supplement to the Form I-129, Petition for a Nonimmigrant 
Worker, that the nature of the event for which the Beneficiary would work comprises of 
thoroughbred horse racing competitions. In addition, the duties that appear in the contract include: 
• Assisting in training, conditioning, and developing thoroughbred horse racing events; 
• Training according to the peculiarities of each horse; 
• Instructing jockeys on how to handle particular horses, feeding, exercising, grooming, and 
talking to horses; 
• Riding horses to exercise and condition them; supervising the horses' health; 
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• Substitute training when necessary; and 
• Preparing horses for sale. 
The Petitioner's characterization of the Beneficiary's specific duties show that he will not create, 
perform, or serve as essential personnel to a "creative activity." Rather, he will be preparing horses 
used solely for the competitive racing industry. Where, as here, a petitioner seeks to employ a 
beneficiary as a horse trainer for athletic competitions, extraordinary ability in the arts is not the 
applicable classification. 
A petitioner sponsoring an 0-1 athlete cannot seek consideration of the petition under the lower 
standard of "distinction" by characterizing the beneficiary's non-creative field as falling within the 
field of arts. The Petitioner has not sought the correct 0-1 visa classification for the Beneficiary, nor 
has it addressed the criteria and standards for individuals of extraordinary ability in athletics as set 
forth at 8 C.F.R. § 214.2(o)(iii)(A) or (B). As the Beneficiary's occupation does not fall within the 
0-1 classification requested on the petition, the petition may be denied for this reason alone. Brazil 
Quality Stones, Inc. v. Chertoff, 286 F. App'x 963, 965 (9th Cir. 2008). 
C. Evidentiary Criteria 
In addition to our finding that the Beneficiary is not engaged in the field of arts, we find that, 
regardless, the Petitioner has not demonstrated the Beneficiary's extraordinary ability. The 
Petitioner does not assert, and the record does not reflect, eligibility under 8 C.F.R. 
§ 214.2(o)(3)(iv)(A), which requires nomination for or receipt of a significant national or 
international award or prize. Accordingly, the Petitioner must satisfy at least three of the six 
regulatory criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B). 1 
Evidence that the alien has performed, and will perform, services as a lead or starring 
participant in productions or events which have a distinguished reputation as evidenced by 
critical reviews, advertisements, publicity releases, publications contracts, or endorsements. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(l). 
The Director concluded that the record did not contain critical reviews, advertisements, publicity 
releases, publications, contracts, or endorsements required by the regulation. On appeal, the 
Petitioner contends that the Beneficiary served in a leading role for and the Petitioner by 
preparing horses for sale at prestigious auctions sponsored by and At issue 
under this criterion are the reputation of the events and the nature of the Beneficiary's participation 
during those occasions. 
1 If the criteria do not readily apply to the Beneficiary's occupation, a petitioner may instead submit comparable 
evidence. 8 C.F.R. § 214.2(o)(3)(iv)(C). The Petitioner in this matter has not advised that it is relying on comparable 
evidence. Regardless, as noted above, the Petitioner filed under the arts for an athletic position. A petitioner may not 
avail itself of the comparable evidence provision by filing in the wrong classification. 
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Regarding the reputation of the events, the Petitioner offered a news article confirming that 
contributes hundreds of millions of dollars to the Kentucky, economy 
between its "boutique race meets in the spring and fall and world-renowned horse sales." 
website materials characterize its "sale of selected yearlings as one of the premier horse 
actions in the world," with "roots that stretch back to The record demonstrates that they 
enjoy a distinguished reputation. 
The record contains some documentation pertaining to the Petitioner's participation at these events. 
An article about horse sales at mentions that owners of a horse farm in California 
purchased a filly "from an agent for [the Petitioner]" at the auction. With respect to the 
Beneficiary's role, the appellate brief concludes that it is "critical and leading" because he is "the 
only assistant trainer on staff." This statement, however, refers to the role of the Beneficiary within 
the operations of and the Petitioner and does not speak to his significance to the 
and auctions. The press materials in the record reference his observation of 
a horse that had deteriorated, his presentation of a plaque to a jockey, and the success of horses he 
trained for his own company, The letters note the Beneficiary's knowledge and 
hard work. While the position of assistant trainer may be valuable to the employer, the Petitioner 
has not 
supplied the necessary documentation corroborating that the Beneficiary has performed as a 
lead or starring participant during consignments for or auctions, the 
identified productions and events. 
Evidence that the alien has achieved national or international recognition for achievements 
evidenced by critical reviews or other published materials by or about the individual in major 
newspapers, tradejournals, magazines, or other publications. 8 C.F.R. § 214.2(o)(3)(iv)(B)(2). 
The record includes three articles that mention the Beneficiary. They reference his observation of a 
horse that had deteriorated, his presentation of a plaque to a jockey, and the success of horses he 
trained for his own company, The Director concluded the pieces did not show 
national or international recognition of the Beneficiary's achievements that the Petitioner had not 
documented the circulation of the newspapers that carried the articles. The Petitioner, however, does 
not address this criterion on appeal. Without more information about the publications in which these 
materials appeared, the Petitioner has not demonstrated that the articles show national or 
international recognition for the Beneficiary's achievements. 
Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for 
organizations and establishments that have a distinguished reputation evidenced by articles in 
newspapers, trade journals, publications, or testimonials. 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). 
As noted above, the Petitioner seeks to employ the Beneficiary as an assistant trainer/rider. He has 
also worked as an assistant trainer for The Petitioner's own website indicates that it is 
"one of the perennial leaders in the consignment arena." Assuming both the Petitioner and 
are organizations with a distinguished reputation, we turn to the Beneficiary's role for these 
stables. 
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Matter of B-S-, LLC 
The Petitioner's website profiles its owner, sales coordinator, and bloodstock specialist, but not the 
Beneficiary. None of the press coverage of the Beneficiary relates to his employment for these two 
companies. The only testimonial regarding the Beneficiary's role for one of these organizations is 
from who contends that an assistant trainer is important because he fills in for the 
trainer and serves as another pair of eyes. To satisfy this criterion, however, the significance of the 
position to the employer must go beyond what it requires for the business to operate. An employer 
generally hires workers only when they are necessary. Concluding, however, that every filled 
position is lead, starring, or critical would render those terms meaningless. general 
statement that assistant trainers are "very important" because they perform necessary duties in 
support of the trainer does not confirm, by a preponderance of the evidence, that the role is a 
qualifying one. 
Evidence that the alien has a record of major commercial or critically acclaimed successes as 
evidenced by such indicators as title, rating, standing in the .field, box office receipts, motion 
picture or television ratings, and other occupational achievements reported in trade journals, 
major newspapers, or other publications. 8 C.F.R. § 214.2(o)(3)(iv)(B)(4). 
The Petitioner does not address this criterion on appeal. Previously, the Petitioner maintained that 
newspaper articles confirmed the Beneficiary's "major commercial or critically acclaimed 
successes." The first article is about the recovery of a horse the Beneficiary trained, after 
veterinarians stopped her heart, thereby resetting the rhythm. A second article focuses on the 
Beneficiary's presentation of a gift to a jockey. The Petitioner does not explain why these 
occurrences show critically acclaimed success. The remaining article discusses the success of horses 
that the Beneficiary trained for his own barn, noting he "claimed [a horse] for $6000 and after a 
couple of second place finishes the horse was claimed for $20,000." While this indicates a level of 
achievement, the criterion requires evidence of "major commercial" success. Other articles about 
the and auctions, however, reflect that racing horses can sell for over $1 
million. Thus, the record does not demonstrate the Beneficiary's major commercial or critically 
acclaimed success. 
Evidence that the alien has either commanded a high salary or will command a high salary or 
other substantial remuneration for services in relation to others in the .field, as evidenced by 
contracts or other reliable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(B)(6). 
The Petitioner indicated that it would compensate the Beneficiary $67,000 per year. The record 
contains information from reflecting that the average salary for an assistant 
trainer is $22,000, as well as pay statements for the Beneficiary. The Director found that the 
Beneficiary meets this criterion and the record supports that conclusion. 
For the above reasons, the Petitioner has only satisfied a single criterion; the regulation requires that 
a Beneficiary meet at least three. Accordingly, it has not documented the Beneficiary's 
extraordinary ability. 
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Matter of B-S-, LLC 
D. Consultation 
As an additional issue, the record does not contain a consultation from an appropriate U.S. peer 
group or person with expertise in the field. 2 The only letters in the record are brief recommendations 
characterizing the Beneficiary as hardworking, and a longer letter from of 
the Beneficiary's prior employer. Notably, affidavits from experts should detail the 
individual's recognition and ability or achievement and set forth the expertise of the affiant. 
8 C.F.R. § 214.2(o)(2)(iii)(B). None of the references provided, however, satisfies these 
requirements. 
First, the letters do not describe the Beneficiary's achievements in the field or the nature of the duties 
to be performed, with reference stating only that the Beneficiary would fill in for 
the trainer on occasion and serve as an extra pair of eyes. Similarly, the letters do not state that the 
position requires the services of an individual of extraordinary ability, with affirming 
only that an assistant trainer is an important part of any stable. Lastly, although owns 
a stable, the documents provided do not otherwise demonstrate the expertise of her or the other 
recommendation writers. For these reasons, the letters provided do not satisfy the consultation 
requirement. 
III. CONCLUSION 
The Petitioner has not demonstrated that the Beneficiary's employment falls under the arts. 
Regardless, the Petitioner has not satisfied at least three of the regulatory criteria to show 
extraordinary ability in the arts. Finally, the record does not contain the necessary consultation. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-S-, LLC, ID# 310276 (AAO May 24, 20 17) 
2 Although 8 C.F.R. § 214.2( o )(2)(ii)(B) allows for a waiver of the consultation if the beneficiary seeks readmission to 
the United States to perform similar services within two years of a previous consultation, we note that, in this case, the 
Beneficiary's previous 0 visa approval occurred over two years ago.